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Open letter on Australian software patents

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The letter is now online and seeking signatures, please promote this among Australians:

Sign the letter: Open letter on Australian software patents - July 2010

This a draft of an open letter to be presented to Senator Kim Carr. Any feedback would be greatly appreciated. The intention is to collect signatures by web form and a small number of high profile signatures on paper.


  • keep it short and easy to read
  • provide references
  • get lots of signatures


[edit] Introductory text (people signing letter online will see this)

Dear member of the software industry,

Please sign the following letter to indicate your support for abolishing patents on software. Please also encourage your friends and colleagues in the software industry to participate.

The Australian government is likely to propose new legislation regarding patentability of software this year. There is currently little action to make the government aware of the harms that software patents cause. The New Zealand Government's Commerce Committee has recently recommended abolishing software patents. Now is an important opportunity to inform our Government.

I will be collating the signatures and delivering them in person to Senator Carr on 1 August.


Ben Sturmfels

[edit] Open letter to Senator Kim Carr

Senator the Hon Kim Carr
Minister for Innovation, Industry, Science and Research
4 Treasury Place
East Melbourne

Dear Senator Carr,

As a member of the software industry, I urge the Australian Government to abolish software patents in the upcoming review of patent legislation.

[edit] Patents are not needed for innovation in the software industry

The software industry has an extensive history of innovating without the use of patents. Specific examples of innovative software developed without patents include:

  • Apache web server (runs approx. 54% of all websites[1])
  • Firefox web browser (used by approx. 31% of website users[2]) and
  • GNU/Linux operating system (widely used in universities, industry and in 91% of the top 500 super-computers in the world[3])
(Possible sources of further info: Software progress happens without patents, Blocking innovation and research, free software)

[edit] Patents actively discourage innovation in the software industry

Small developers are discouraged from innovating because it is neither viable to search software patents nor to defend themselves against patent lawsuits.

The government's 2009 /Venturous Australia/ report found that:

in new areas of patenting such as software and business methods, there is strong evidence that existing intellectual property arrangements are hampering innovation.[4]

UEAPME is a union which represents small to medium enterprises that employ approx. 55 million people in Europe. They state:

UEAPME is opposed to the introduction of an EU software patent, which would reinforce monopolisation in the software sector, damage interoperability and act as a barrier to innovation by SMEs. Small firms simply do not have the resources to engage in the costly and time-consuming process of patent application. This would enable dominant large firms in the sector to secure vast numbers of patents and result in crippling litigation costs, which would put small firms out of business.[5]

UK Lord Justice Jacob states:

If the encouragement of patenting and of patent litigation as industries in themselves were a purpose of the patent system, then the case for construing [exclusions] narrowly (and indeed for removing them) is made. But not otherwise.[6]

[edit] A 20 year monopoly is too long in the software industry

Patents are intended to trade off a short-term monopoly in return for the long-term benefit of disclosing details of the invention to society. For many industries, 20 years is considered short-term. However, due to the rapid evolution of the software industry, withholding a technique for 20 years renders it essentially useless to the industry and to society.

(Possible sources of further info: Incompatible delays and durations)

[edit] The software industry has not been well-represented in the recent review

In 2009, the Advisory Council on Intellectual Property (ACIP) held a public consultation during their Review of Patentable Subject Matter[7]. Microsoft Corporation was the only software industry respondent. It is therefore clear that the software industry cannot be well-represented in the findings of the review. I was not aware of this public consultation, so was unable to make a submission.

As a member of the software industry, it is clear to me that software patents cause more harm than good. I therefore urge the Australian Government to abolish software patents.

(Possible sources of further info: Australian consultation responses 2009)



[1] http://en.wikipedia.org/wiki/Web_server#Market_structure (11 July 2010)

[2] http://en.wikipedia.org/wiki/Usage_share_of_web_browsers (11 July 2010)

[3] http://www.top500.org/stats/list/35/osfam (11 July 2010)

[4] http://www.innovation.gov.au/innovationreview/Documents/NIS_review_Web3.pdf, page 12

[5] http://www.ueapme.com/docs/press_releases/pr_2005/050621_Computer_Patent.pdf

[6] Aerotel Ltd. v Telco Holdings Ltd, http://www.bailii.org/ew/cases/EWCA/Civ/2006/1371.html

[7] http://www.acip.gov.au/reviews.html#subject